George Burdick v. United States

• Citation: 35 S.Ct. 267,59 L.Ed. 476,236 U.S. 79
• Decision Date: 25 January 1915
• Docket Number: No. 471,471
• Parties: GEORGE BURDICK, Plff. in Err., v. UNITED STATES
• Court: United States Supreme Court

236 U.S. 79

35 S.Ct. 267

59 L.Ed. 476

GEORGE BURDICK, Plff. in Err.,

v UNITED STATES.

No. 471.

Argued December 16, 1914.

Decided January 25, 1915.

Messrs. Henry A. Wise and Henry W. Sackett for plaintiff in error.

[Argument of Counsel from pages 79-82 intentionally omitted] Solicitor General Davis for defendant in error.

[Argument of Counsel from pages 82-84 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

Error to review a judgment for contempt against Burdick upon presentment of the Federal grand jury for refusing to answer certain questions put to him in an investigation then pending before the grand jury into alleged custom frauds in violation of §§ 37 and 39 of the Criminal Code of the United States [35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, §§ 10201, 10203].

Burdick first appeared before the grand jury and refused to answer questions as to the directions he gave and the sources of his information concerning certain articles in the New York Tribune regarding the frauds under investigation. He is the city editor of that paper. He declined to answer, claiming upon his oath, that his answers might tend to criminate him. Thereupon he was remanded to appear at a later day, and upon so appearing he was handed a pardon which he was told had been obtained for him upon the strength of his testimony before the other grand jury. The following is a copy of it:

'Woodrow Wilson, President of the United States of America, to all to whom these presents shall come, Greeting:

'Whereas George Burdick, an editor of the New York Tribune, has declined to testify before a Federal grand jury now in session in the southern district of New York, in a proceeding entitled, 'United States v. John Doe and Richard Roe,' as to the sources of the information which he had in the New York Tribune office, or in his possession, or under his control at the time he sent Henry D. Kingsbury, a reporter on the said New York Tribune, to write an article which appeared in the said New York Tribune in its issue of December 31st, 1913, headed, 'Glove Makers' Gems May Be Customs Size,' on the ground that it would tend to incriminate him to answer the questions; and,

'Whereas, the United States attorney for the southern district of New York desires to use the said George Burdick as a witness before the said grand jury in the said proceeding for the purpose of determining whether any employee of the Treasury Department at the custom- house, New York city, has been betraying information that came to such person in an official capacity; and,

'Whereas, it is believed that the said George Burdick will again refuse to testify in the said proceeding on the ground that his testimony might tend to incriminate himself;

'Now, therefore, be it known, that I, Woodrow Wilson, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said George Burdick a full and unconditional pardon for all offenses against the United States which he, the said George Burdick, has committed or may have committed, or taken part in, in connection with the securing, writing about, or assisting in the publication of the information so incorporated in the aforementioned article, and in connection with any other article, matter, or thing concerning which he may be interrogated in the said grand jury proceeding, thereby absolving him from the consequences of every such criminal act.

'In testimony whereof, I have hereunto signed my name and caused the seal of the Department of Justice to be affixed. Done at the city of Washington this fourteenth day of February, in the year of our Lord One Thousand Nine Hundred and Fourteen, and of the Independence of the United States the One Hundred and Thirty-eighth.'

He deelined to accept the pardon or answer questions as to the sources of his information, or whether he furnished certain reporters information, giving the reason, as before, that the answers might tend to criminate him. He was presented by the grand jury to the district court for contempt, and adjudged guilty thereof and to pay a fine of $500, with leave, however, to purge himself by testifying fully as to the sources of the information sought of him, 'and in event of his refusal or failure to so answer, a commitment may issue in addition until he shall so comply,' the court deciding that the President has power to pardon for a crime of which the individual has not been convicted and which he does not admit, and that acceptance is not necessary to toll the privilege against incrimination.

Burdick again appeared before the grand jury, again was questioned as before, again refused to accept the pardon, and again refused to answer upon the same grounds as before. A final order of commitment was then made and entered, and he was committed to the custody of the United States marshal until he should purge himself of contempt, or until the further order of the court. This writ of error was then allowed.

The question in the case is the effect of the unaccepted pardon. The Solicitor General, in his discussion of the question, following the division of the district court, contends (1) that the President has power to pardon an offense before admission or conviction of it, and (2) the acceptance of the pardon is not necessary to its complete exculpating effect. The conclusion is hence deduced that the pardon removed from Burdick all danger of accusation or conviction of crime, and that, therefore, the answers to the questions put to him could not tend to or accomplish his incrimination.

Plaintiff in error counters the contention and conclusion with directly opposing ones, and makes other contentions which attack the sufficiency of the pardon as immunity and the power of the President to grant a pardon for an offense not precedently established nor confessed nor defined.

The discussion of counsel is as broad as their contentions. Our consideration may be more limited. In our view of the case it is not material to decide whether the pardoning power may be exercised before conviction. We may, however, refer to some aspects of the contentions of plaintiff in error, although the case may be brought to the narrow question, Is the acceptance of a pardon necessary? We are relieved from much discussion of it by United States v. Wilson, 7 Pet. 150, 8 L. ed. 640. Indeed, all of the principles upon which its solution depends were there considered and the facts of the case gave them a peculiar and interesting application.

There were a number of indictments against Wilson and one Porter, some of which were for obstructing the mail and others for robbing the mail and putting the life of the carrier in jeopardy. They were convicted on one of the latter indictments, sentenced to death, and Porter was executed in pursuance of the sentence. President Jackson pardoned Wilson, the pardon reciting that it was for the crime for which he had been sentenced to suffer death, remitting such penalty with the express stipulation that the pardon should not extend to any judgment which might be had or obtained against him in any other case or cases then pending before the court for other offenses wherewith he might stand charged.

To another of the indictments Wilson withdrew his plea of not guilty and pleaded guilty. Upon being arraigned for sentence the court suggested the propriety of inquiring as to the effect of the pardon, 'although alleged to relate to a conviction on another indictment.' Wilson was asked if he wished to avail himself of the pardon, to which he answered in person that 'he had nothing to say, and that he did not wish in any manner to avail himself, in order to avoid sentence in this particular case, of the pardon referred to.'

The judges were opposed in opinion and certified to this court for decision two propositions which were argued by the district attorney of the United States, with one only of which we are concerned. It was as follows: '2. That the prisoner can, under this conviction, derive no advantage from the pardon, without bringing the same judicially before the court by plea, motion, or otherwise.' There was no appearance for Wilson. Attorney General Taney (afterwards chief justice of this court) argued the case on behalf of the United States. The burden of his argument was that a pardon, to be effective, must be accepted. The proposition was necessary to be established, as his contention was that a plea of the pardon was necessary to arrest the sentence upon Wilson. And he said, speaking of the pardon, 'It is a grant to him [Wilson]; it is his property; and he may accept it or not, as he pleases;' and, further: 'It is insisted that unless he pleads it, or in some way claims its benefit, thereby denoting his acceptance of the proffered grace, the court cannot notice it, nor allow it to prevent them from passing sentence. The whole current of authority establishes this principle.' The authorities were cited and it was declared that 'the necessity of pleading it, or claiming it in some other manner, grows out of the nature of the grant. He must accept it.'

There can be no doubt, therefore, of the contention of the Attorney General, and we have quoted it in order to estimate accurately the response of the court to it. The response was complete and considered the contention in two aspects: (1) a pardon as the act of the President, the official act under the Constitution; and (2) the attitude and right of the person to whom it is tendered. Of the former it was said that the power had been 'exercised from time immemorial by the executive of that nation [England], whose...